Ahern v Aon Risk Services Australia Limited

The Court of Appeal of New South Wales, comprising Ward P, Gleeson and Brereton JJA, considered an appeal and a related application for leave to appeal concerning interlocutory orders made by a primary judge. The appellants, Ahern and others, sought to appeal a decision that summarily dismissed their summons and an associated costs order. The respondent, Aon Risk Services Australia Limited, had successfully moved to have the summons dismissed.

The central legal issues before the Court of Appeal were whether the primary judge had denied the appellants procedural fairness by determining an application for an extension of time on the hearing of a motion to dismiss the summons, whether the primary judge erred in refusing leave to file additional submissions, whether the primary judge correctly applied the test for granting leave to appeal in circumstances of significant delay and prejudice, and whether the primary judge erred in making a gross sum costs order that included GST. The Court also had to determine whether the order summarily dismissing the proceedings was an interlocutory order for the purposes of requiring leave to appeal.

The Court reasoned that the issue of the extension of time had been addressed in both written submissions and oral argument, and therefore, there was no denial of procedural fairness. Leave to file further submissions was refused as there had been no new developments since the hearing. The Court found no error in the primary judge's reference to the need for a "strongly arguable case" for leave to appeal, particularly given the lengthy delay and considerable prejudice involved. The primary judge was also correct in ordering the appellants to pay the respondent's costs of the motion and dismissed proceedings. Furthermore, the Court refused leave to appeal on the question of costs alone, noting the relatively small component of the gross sum order that was in dispute. Finally, the Court confirmed that an order summarily dismissing proceedings is an interlocutory order.

In Proceedings 2022/184703, the appeal was dismissed as incompetent, and the appellants were ordered to pay the respondents' costs of the appeal and their motion. In Proceedings 2022/266023, leave to appeal was refused, with costs.